Valparaiso University Law Review
Volume 38
Number 2
pp.405-420
Symposium on Tomorrow's Issues in State Constitutional Law
How We Do It in Massachusetts: An Overview of
How the Massachusetts Supreme Judicial Court
Has Interpreted Its State Constitution to Address
Contemporary Legal Issues
Roderick L. Ireland
Recommended Citation
Roderick L. Ireland, How We Do It in Massachusetts: An Overview of How the Massachusetts Supreme Judicial Court Has Interpreted Its
State Constitution to Address Contemporary Legal Issues, 38 Val. U. L. Rev. 405 (2004).
Available at: http://scholar.valpo.edu/vulr/vol38/iss2/5
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Ireland: How We Do It in Massachusetts: An Overview of How the Massachuset
HOW WE DO IT IN MASSACHUSETTS: AN
OVERVIEW OF HOW THE MASSACHUSETTS
SUPREME JUDICIAL COURT HAS
INTERPRETED ITS STATE CONSTITUTION TO
ADDRESS CONTEMPORARY LEGAL ISSUES
Honorable Roderick L. Ireland*
[S]tate courts cannot rest when they have afforded their
citizens the full protections of the federal Constitution. State
constitutions, too, are a font of individual liberties, their
protections often extending beyond those required by the
Supreme Court's interpretation of federal law. The legal
revolution which has broughtfederal law to the fore must not
be allowed to inhibit the independent protective force of state
law -for without it, the full realizationof our liberties cannot
be guaranteed.'
The nature of federalism requires that State Supreme Courts
and State Constitutions be strong and independent
repositories of authority in order to protect the rights of their
2
citizens.
I.
INTRODUCrION
In 2000, the Massachusetts Supreme Judicial Court ("SJC") decided
Commonwealth v. Mavredakis,3 which concerned the scope of a suspect's
right to an attorney when in police custody. The defendant was under
interrogation and did not know that his family had hired an attorney to
represent him. The police refused the attorney's request to cease
questioning the defendant until he arrived and did not tell the defendant
that the attorney was trying to contact him. 4 Although the United States
Supreme Court had decided in a parallel case that a defendant's Fifth
Associate Justice of the Massachusetts Supreme Judicial Court. I would like to thank
John Pollock, a student intern from Northeastern University School of Law, for his tireless
assistance on this article. I am grateful for all of his work and appreciate his dedication and
enthusiasm.
1
William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90
HARV. L. REV. 489, 491 (1977).
2
Commonwealth v. Gonsalves, 711 N.E.2d 108, 115 (Mass. 1999) (Greaney, J.).
3
725 N.E.2d 169 (Mass. 2000).
4
Id. at 173-74.
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Amendment rights were not offended in this scenario, 5 the SJC examined
whether there nonetheless might be a violation of Article 12, the selfincrimination clause of the Massachusetts Declaration of Rights. The
court examined textual differences between Article 12 and the Fifth
Amendment, the unique history of Massachusetts, and prior
interpretations of Article 12's self-incrimination provisions. Based on
these considerations, it concluded that the police department's policy of
preventing interrogated suspects from being contacted by third parties
did violate Article 12.6
Mavredakis was but one in a line of Massachusetts cases decided over
the past three decades that parted ways with federal law jurisprudence
and provided greater protections under state constitutional law. This
trend of state courts using their own constitutions has been actively
encouraged by some justices of the Supreme Court. For example, Justice
William Brennan, dissented in a case that allowed the police to re-initiate
questioning of subjects who had invoked their Fifth Amendment rights,
commented that,
In light of today's erosion of Miranda standards as a
matter of federal constitutional law, it is appropriate to
observe that no State is precluded by the decision from
adhering to higher standards under state law. Each
State has power to impose higher standards governing
police practices under state law than is required by the
7
Federal Constitution.
This paper is intended to: (1) provide a brief introduction to how
basic principles of federalism support a separate analysis of the
Massachusetts state constitution; and (2) explore the variety of analytical
methods employed by the SJC to interpret the state constitution. This
includes an examination of state history, a careful analysis of the text, an
investigation of the body of statutory and common law on the subject, a
comparison to the positions of other state courts, and weighing
"common standards of decency." The paper demonstrates that when the
court has provided a thoughtful and grounded analysis in these
fashions, it has legitimized the process and helped to silence critics who
accuse the court of charting a new path in constitutional jurisprudence.
5
6
7
Moran v. Burbine, 475 U.S. 412, 422 (1986).
Mavredakis, 725 N.E.2d at 180.
Michigan v. Mosley, 423 U.S. 96, 120 (1975) (Brennan, J., dissenting).
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II. FEDERALISM: THE SJC AND THE SUPREME COURT
As per a basic principle of federalism, "The Federal Bill of Rights did
not supersede those of the states." 8 Nor do the state constitutions
"mirror the federal Bill of Rights," 9 particularly because states that
rewrote their constitutions after the Federal Constitution was enacted
"took their bills of rights from the preexisting state constitutions rather
than from the federal amendments." 10 The Massachusetts Constitution is
unique in that it not only predates the Federal Constitution,1 but was
also used as a model for it: "[T]he state constitutions -particularly that
of Massachusetts -were the greatest single influence on the Federal
Constitution." 12 As framer John Adams said, "'I made a Constitution for
Massachusetts, which finally made the Constitution of the United
States."13
Because the Massachusetts Declaration of Rights is a sovereign
document, the SJC has an "'obligation to make an independent
14
determination' of rights, liberties, and obligations for [Massachusetts]."
While the SJC often defers to the Supreme Court's reading of the U.S.
Constitution on parallel matters, the court has recognized, "We are, of
course, free to interpret our own Constitution differently from the
manner in which the United States Supreme Court interprets basically
the same language in the United States Constitution."15 The Supreme
8
Justice Hans A. Linde, First Things First: Rediscovering the States' Bills of Rights, 9 U.
BALT. L. REV. 379, 381 (1980).
9
Brennan, supra note 1, at 501.
'0
Linde, supra note 8, at 381.
11
The Massachusetts Constitution was ratified in 1780, whereas the federal constitution
was not ratified until 1787. RONALD J. PETERS, JR., THE MASSACHUSETTS CONSTITUTION OF
1780: A SOCIAL COMPACT 14, 21 (1978).
12 ELISHA P. DOUGLASS, REBELS AND DEMOCRATS: THE STRUGGLE FOR EQUAL POLITICAL
RIGHTS AND MAJORITY RULE DURING THE AMERICAN REVOLUTION 32 (Belknap Press 1967)
(1955).
13 PETERS, supra note 11, at 14 (quoting John Adams to Mercy Warren, July 28, 1807, in
The Adams-Warren Letters, COLLECTIONS OF THE MASSACHUSETTS HISTORICAL SOCIETY 73
(1925)).
14
Charles G. Douglas, State Judicial Activism - The New Role for State Bills of Rights, 12
SUFFOLK U. L. REV. 1123, 1145 (1978) (quoting in part from Project Report: Toward an Activist
Role for State Bills of Rights, 8 HARV. C.R.-C.L. L. REV. 271, 275 (1973)).
15
Suffolk Dist. Attorney v. Watson, 411 N.E.2d 1274, 1300 (1980) (Quirico, J., dissenting).
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Court will not overrule a decision of the SJC that is based solely on state
16
law grounds.
III.
ANALYTICAL METHODS USED TO INTERPRET THE MASSACHUSETTS
CONSTITUTION
In the 1970s, the SJC began to give more serious consideration to the
Declaration of Rights and the protections it might afford in the absence
of federal rights. For instance, SJC Justice Benjamin Kaplan suggested in
several 1970s opinions that the Declaration of Rights might prove to be a
barrier to certain regulations limiting free speech.17 Additionally, a
series of cases focused on death penalty statutes examined the meaning
and purpose of Article 26 (cruel or unusual punishments) and Article 12
(protection against self-incrimination) as they pertained to the death
18
penalty.
The SJC, however, has faced criticism that it has protected certain
constitutional rights by fiat, rather than by well-grounded reasoning.
Justice Quirico, dissenting in a case expanding Article 26 protections
beyond those of the equivalent Eighth Amendment, stated that the court
was making a decision with "[a] total absence of any sound reason for
the difference in interpretation." 19 This sentiment was echoed in
Commonwealth v. Amendola ("It seems that, whenever we wish to expand
16 See Murdock v. City of Memphis, 87 U.S. (20 Wall.) 590 (1875). Because of the
Supremacy Clause of Article VI of the U.S. Constitution, states cannot use their
constitutions to contravene decisions by the U.S. Supreme Court that provide or guarantee
a baseline right; "[flederal law sets a minimum floor of rights below which state courts
cannot slip." Developments in the Law - The Interpretation of State ConstitutionalRights, 95
HARV. L. REV. 1324, 1334 (1982) [hereinafter Developments]. Furthermore, in order to avoid
Supreme Court review, a state court utilizing its state constitution "[cannot] rest [its
decision] primarily on federal law, or ...be interwoven with the federal law .... [It must
state] clearly and expressively that [its decision] is alternatively based on bona fide
separate, adequate, and independent grounds." Michigan v. Long, 463 U.S. 1032, 1040-41
(1983).
17 Commonwealth v. Horton, 310 N.E.2d 316, 321, 325 (Mass. 1974) (Kaplan, J.,
concurring) (holding that a statute prohibiting obscene material is unconstitutionally
vague). Justice Kaplan implied that "a State is without power [under the Massachusetts
Constitution] to intrude on the choice of an adult who knowingly and willingly seeks out a
pornographic work." See also Revere v. Aucella, 338 N.E.2d 816, 822 (Mass. 1975) (Kaplan,
J.,dissenting) (arguing that instead of finding a statute prohibiting lewd and lascivious
behavior unconstitutionally vague, the court should have held the statute violated the state
constitution on its face).
18 See, e.g., In re Opinion of the Justices, 364 N.E.2d 184 (Mass. 1977); Commonwealth v.
O'Neal, 327 N.E.2d 622 (Mass. 1975).
19 Watson, 411 N.E.2d at 1300 (Quirico, J., dissenting).
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the rights of defendants in criminal cases, we simply invoke the
Massachusetts Constitution without so much as a plausible argument
that the Massachusetts Constitution requires the expansion"), 20 and
again in Commonwealth v. Panetti ("Equally gratuitous is the court's
conclusion ...that seizure of the defendant's conversation violated
[Article] 14 .... No authority is cited. No analysis is advanced to
21
support this conclusion. It is simply a naked ipse dixit without logic.").
A similar critique could have been directed at Commonwealth v. NofJke,22
where the court declared that "[alt least in this context, the [free speech]
protections of [Articles] 16 and 19 extend no further than the comparable
provisions of the First Amendment," but provided no further
explanation. 23
Realizing that it "must be able to explain [its] decisions in terms
other than the personal preferences of those who make them," 24 the SJC
has blended methodologies such as textual analysis, history, common
law, structural difference, and comparison to other states. Mavredakis
utilized many of the basic approaches, as the court looked to "text,
history, and our prior interpretations of art. 12, as well as the
jurisprudence existing in the Commonwealth before [the parallel
Supreme Court case of] Moran was decided."25 The methods described
in detail below are but some of the approaches taken by the SJC in its
state constitutional analysis.
A. Massachusetts State and ConstitutionalHistory
The SJC has often analyzed the history of Massachusetts itself, as
well as the legislative history of various provisions of the Massachusetts
Constitution, in an attempt to ascertain the original intent of the drafters.
It then has compared history to the issue at hand, in order to determine
550 N.E.2d 121, 127 (Mass. 1990) (Nolan, J., dissenting) (arguing that defendants have
automatic standing under state constitution to challenge evidence of possession of
contraband).
21
547 N.E.2d 46, 49 (Mass. 1989) (Nolan, J., dissenting) (arguing that a police officer
without a warrant who was listening to a conversation in a private apartment by hiding in
a crawl space underneath the floor violated the Massachusetts Constitution).
22 379 N.E.2d 1086 (Mass. 1978) (holding that union organizers arrested for trespass
when protesting on hospital grounds did not have a free speech right under state
constitution).
Id. at 1090.
24
Jack L. Landau, Hurrahfor Revolution: A Critical Assessment of State Constitutional
Interpretation,79 OR. L. REv. 793, 890-91 (2000).
25
Mavredakis, 725 N.E.2d at 177.
20
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whether the "subject matter [is] local in character, or [whether there is] a
need for national uniformity." 26 For instance, in the colonial era,
Massachusetts served as a focal point of the Revolutionary War, and
portions of the Massachusetts Constitution were drafted in response to
unreasonable searches, seizures, and interrogations on the part of British
soldiers and other officials. 27 This unique history has been relevant in a
series of decisions regarding Declaration of Rights provisions that are
comparable to the Fourth and Fifth Amendments.
In Mavredakis, the court considered whether a suspect in police
custody has the right to be notified that his or her attorney is attempting
to make contact. The Supreme Court decided in Moran v. Burbine28 that
prior to indictment, a suspect's right to an attorney is not automatically
attached, and therefore, the police have no obligation to inform the
suspect about "[e]vents occurring outside of the presence of the
suspect" 29 like the attorney trying to reach the suspect. The SJC,
however, concluded that Article 12 of the Massachusetts Declaration of
Rights provided a broader protection against self-incrimination than the
Fifth Amendment, noting the fact that "Article 12 and other similar State
constitutional provisions evolved from a sense of disapproval of the
inquisitorial methods of the Star Chamber and ecclesiastical courts in
England." 30 In this historical light, the SJC commented that "[olur
31
precedents have often interpreted [Article] 12 expansively."
The court echoed a similar historical perspective in Commonwealth v.
Blood,32 prohibiting the recording of conversations in a private home
with the consent of only one party (in this case, a police informant),
which had been allowed in United States v. White.33 The SJC stated that
"[t]he vice of the consent exception is that it institutionalizes the historic
danger that [Article] 14 was adopted to guard against." 34 It then
described how British search policies were the source of much of the
revolutionary sentiment in Massachusetts, and how Massachusetts had
26
VA.
27
2
Dick Howard, State Courts and Constitutional Rights in the Day of the Burger Court, 62
L. REV. 873, 937 (1976).
See Commonwealth v. Blood, 507 N.E.2d 1029, 1035-36 (Mass. 1987).
475 U.S. 412 (1986).
29
Id. at 422.
30
Mavredakis, 725 N.E.2d at 178.
31
Id.
32
33
3
507 N.E.2d 1029 (Mass. 1987).
401 U.S. 745, 753 (1971).
Blood, 507 N.E.2d at 1035.
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adopted Article 14 in 1780 as a specific response to unreasonable
searches and seizures: "[T]he colonists' memory of the use and abuse of
the writs was one of the reasons for the adoption ...of constitutional
safeguards regarding searches." 35 The SJC then explained that Article 14
was a way of not only protecting citizens from illegal physical searches,
but also "protect[ing] Americans in their beliefs, their thoughts, their
emotions and their sensations" 36 which are "cherished possessions." 37 In
particular, the court reasoned that "[s]ince the conversations at issue
took place in private homes, and there is no evidence to suggest that the
participants intended the contents to become more widely known," the
parties had a "subjective expectation of privacy." 38 Finally, the court
emphasized that "[t]hese [electronic surveillance] techniques are
peculiarly intrusive upon that sense of personal security which [Article]
14 commands us to protect." 39 In the court's view, one-party consent
violated the subjective expectation of privacy, and it concluded by
40
declaring: "What was intolerable in 1780 remains so today."
In Commonwealth v. Gonsalves,41 the Court again expressed a
disapproval for invasive police policies, this time involving police who
ordered suspects to exit their vehicles without reasonable suspicion. It
noted that "[t]he Declaration of Rights was written in the historical
context of the abuses of governmental power inflicted on the colonists by
British officials, and [Article] 14 was directed at the unlawful invasion of
privacy rights by those officials." 42 In doing so, it firmly rejected the
43
Supreme Court precedent established in Pennsylvania v. Mimms,
judging it insufficient to adequately protect the rights of Massachusetts
citizens, given the State's particular history and concerns.
Id. (quoting Commonwealth v. Cundriff, 415 N.E.2d 172 (Mass. 1980), cert. denied, 451
U.S. 973 (1981)).
36 Blood, 507 N.E.2d at 1034 (quoting Olmstead v. United States, 277 U.S. 438, 478 (1928)
(Brandeis, J., dissenting)).
37 Id.
38 Id. at 1033.
35
39
40
Id. at 1034.
Id. at 1035.
41
711 N.E.2d 108 (Mass. 1999).
42
Id. at 115.
43 434 U.S. 106, 111 (1977) (holding that police officer may as a matter of course order
driver of lawfully stopped car to exit vehicle).
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B.
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Textual Differences
Textual differences between the State and Federal constitutions
provide another basis for the SJC to depart from analogous Supreme
Court decisions. Provisions in the Declaration of Rights are often more
wordy than their federal counterparts, at times because John Adams
"chose to develop in his draft of the Massachusetts Constitution the
reasoning behind many of its provisions." 44 At other times, the reason
for the difference lies in the Federal Constitution's preference toward
general brevity: "Where the Federal Constitution settles for a word or a
phrase, the Massachusetts Constitution takes up a sentence or even a
45
paragraph."
In Attorney General v. Colleton,4 6 the defendant refused to respond to
questioning by the Attorney General on the grounds of protection
against self-incrimination. The Attorney General argued that Mass. Gen.
Laws ch. 93A, § 6 ensured that the defendant's direct testimony could
not be used as evidence, and that this "use and derivative use" immunity
was sufficient to supplant the fuller protection against any selfincrimination. In Kastigar v. United States, 47 the Supreme Court agreed
with the Attorney General's position and held that only "use and
derivative use immunity" was constitutionally protected; there was no
"absolute" or "transactional" immunity against any prosecution related
48
to the testimony under the Fifth Amendment.
The SJC began Colleton by noting that the Fifth Amendment reads,
"No person ...shall be compelled in any criminal case to be a witness
against himself," whereas Article 12 more broadly states, "No subject
shall be ...compelled to accuse, or furnish evidence against himself."49 The
court considered the "furnish evidence" phrase to be a significant
expansion of the self-incrimination privilege unaffected by the immunity
granted in chapter 93A: "Long before Kastigar... this court decided that
the words of [Article] 12, 'or furnish evidence against himself,' may be
presumed to be intended to add something to the significance of the
supra note 11, at 14.
44
45
PETERS,
46
444 N.E.2d 915 (Mass. 1982).
406 U.S. 441, 453 (1972), reh'g denied, 408 U.S. 931 (1972).
Id.
Colleton, 444 N.E.2d 915, 919 (emphasis added).
47
48
49
Id.
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preceding language." 50 As evidence of this proposition, it cited to
Emery's Case,51 an 1871 suit that stated:
It is a reasonable construction to hold that [the "furnish
evidence" phrase] protects a person from being
compelled to disclose the circumstances of his offence,
the sources from which, or the means by which evidence
of its commission... may be obtained, or made effectual
for his conviction, without using his answers as direct
52
admissions against him.
Other SJC cases have reached the same conclusion based on the
wording of the self-incrimination text. In 1992, the Massachusetts State
Senate sought to amend Mass. Gen. Laws ch. 90, § 24(1)(e) to make a
suspect's refusal to take a breathalyser test admissible as evidence. In an
advisory opinion on the proposed statutory change, the SJC noted that a
suspect could not refuse a breathalyser test without potentially incurring
a penalty, which pressured the suspect into submitting to the test and
inadvertently "furnishing evidence" against themselves.5 3 Furthermore,
both refusing and agreeing to take the test could produce equally
incriminating evidence, leaving a suspect with no way to stay "silent."
The SJC therefore concluded that the broad provisions of Article 12, as
established in Emery's Case, would prevent admission of "refusal
evidence," even if the Federal Constitution would not.54 Similarly, the
court in Mavredakis relied on the textual difference, combined with prior
interpretations of Article 12's self-incrimination provisions, to declare
that protecting this right was the only way to ensure that Miranda
55
protections against self-incrimination were "substantively meaningful."
Blurring the boundaries between free speech, free elections, and
property rights, Batchelder v. Allied Stores International, Inc. 56 raised the
question of whether a person possessed a constitutional right to gather
signatures at a private shopping mall in support of increasing ballot
50
Id.
107 Mass. 172 (1871).
Id. at 182.
53 See In re Opinion of the Justices, 591 N.E.2d 1073 (Mass. 1992).
54
See generally id. For the federal rule on breathalysers, see South Dakota v. Neville, 459
U.s. 553, 564 (1983).
55 Mavredakis, 725 N.E.2d at 179.
56 445 N.E.2d 590 (Mass. 1983).
51
52
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access. Notably, in PruneYard Shopping Center v. Robins, 57 the Supreme
Court had concluded that California's protection of this right under its
state constitution did not offend the takings clause of the Fifth
Amendment. The SJC compared the First Amendment to Article 9 of the
Declaration of Rights, and noted that "[u]nlike the prohibition of the
First Amendment ... ('Congress shall make no law ... ') and the
limitation of the Fourteenth Amendment ('nor shall any State deprive
any person .. .'), [Article] 9 is not by its terms directed only against
governmental action."58 The court concluded that there was "no reason
to imply [a state action] requirement, and thereby to force a parallelism
with the Federal Constitution,"5 9 and noted in support that other
provisions of the Declarations of Rights had been found to reach private
parties as well. 60 Article 9 was thus construed as a larger textual whole
that permitted the court to reach private conduct typically unreachable,
such as a private property owner refusing access to signature collectors.
The heavy emphasis on the text has led some dissenters to criticize
the court for expanding rights when those rights are not explicitly
spelled out in the document. 61 But even when a provision of the
447 U.S. 74, 83 (1980).
Batchelder,445 N.E.2d at 593.
59
Id. Article 9 of the Declaration of Rights of the Massachusetts Constitution states, "All
elections ought to be free; and all the inhabitants of this commonwealth, having such
qualifications as they shall establish by their frame of government, have an equal right to
elect officers, and to be elected, for public employments." Id. at 593 n.6.
6
The court stated:
Although it is a powerful document expressing restraints on
governmental action, the Declaration of Rights contains other
provisions dealing with relationships between private parties. See, e.g.,
Reeves v. Scott, 324 Mass. 594, 598-599 (1949) (arts. 1 and 10 of the
Declaration of Rights of the Massachusetts Constitution preclude a
private union of musicians from interfering with the lawful conduct of
the business of an unaffiliated musician); McNeilly v. First
Presbyterian Church in Brookline, 243 Mass. 331, 339-340 (1923) (art. 3
of the Declaration of Rights, as amended by art. 11 of the Amendments
to the Massachusetts Constitution, entitles a religious society, against
the objection of a minority of its members, to elect a pastor); Coffin v.
Coffin, 4 Mass. 1, 25-29 (1808) (art. 21 of the Declaration of Rights bars
a defamation action by one citizen against another for defamatory
words if the speaker was acting as a member of the House of
Representatives).
Id. at 594 n.9 (parallel citations omitted).
61
See, e.g., Commonwealth v. Upton, 476 N.E.2d 548, 560 (Mass. 1985) (Lynch, J.,
dissenting) ("I find nothing in the Massachusetts Declaration of Rights or G.L. c. 276, § 2B,
that mandates a stricter standard for determining whether probable cause exists than is
found in the United States Constitution."); Amendola, 550 N.E.2d at 127 (Nolan, J.,
57
58
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Declaration of Rights is identical to a portion of the Federal Constitution,
the mirrored language "does not mean that the state constitution's
framers intended to incorporate federal constitutional law into their own
constitutions; as Jerome Falk has observed with respect to the California
constitution, 'different men may employ identical language yet intend
vastly different meanings and consequences.' ' 62 In Colleton, the court
warned that it would be a mistake "[t]o assume that, because of the
common source of the principles articulated in each Constitution, the
two provisions must have the same meaning." 63 Instead, the court must
independently ascertain not only the meaning of the Massachusetts
framers, but also the meaning within the context of the state's history,
culture, and prior jurisprudence.
C. Statutory and Common Law History
The body of legislative and common law history have been of
particular use when there are no decisions by the SJC or Supreme Court
directly on point, and can help address "the risk of going where there
simply are no ascertainable standards to guide the judge." 64 Although
not binding upon the court when not directly on point, such a body of
law is a useful indicator of the will of the people or courts of the
Commonwealth.
For instance, in Colleton, the SJC noted, "[The fact that] transactional
immunity is the long-established and still vital law of this
Commonwealth is also established by a variety of legislative
enactments." 65 Similarly, in Mavredakis, the SJC noted that "[t]he
establishment of a duty to inform a suspect of an attorney's efforts to
provide legal advice builds on our decisions in Commonwealth v.
Sherman[,] Commonwealth v. Mahnke[,] and Commonwealth v. McKenna."66
Lastly, in Commonwealth v. Stoute 67 the SJC noted that in a previous
dissenting) ("Absolutely nothing in art. 14 of the Massachusetts Declaration of Rights
suggests a rule of automatic standing.").
62 Developments, 95 HARV. L. REV. at 1497 (quoting Falk, Adequate Ground, 61 CAL. L. REV.
at 282).
63 Colleton, 444 N.E.2d at 921.
64 Howard, supranote 26, at 943.
65 Colleton, 444 N.E.2d at 920 n.8. The court cited the following Mass Gen. Laws in
support of its conclusion: G.L. c. 54, § 120; G.L. c. 93, § 7; G.L. c. 150A, § 7(3); G.L. c. 151A,
§ 43; G.L. c. 175, § 183; G.L. c. 176D, § 13; G.L. c. 233, § 20G. Id.
6
Mavredakis, 725 N.E.2d at 179 (parallel citations omitted).
67
665 N.E.2d 93,95-96 (Mass. 1996).
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case, 68 it had begun to turn away from the Supreme Court's definition of
"seizure" as excluding a policeman's pursuit of a suspect with intent to
detain.
D. Comparison to Other States
In situations where neither history nor text nor body of law provides
a sense of direction, the SJC has opted at times to examine other
jurisdictions' jurisprudence. The fact that the SJC has both highlighted
and ignored the developments in other states at various times should not
be looked upon as inconsistent because the decisions of other
jurisdictions are not binding precedent.
In Batchelder, the court noted that "[a] majority of the State courts
that recently have considered rights under State Constitutions to engage
in orderly free speech, free assembly, or electoral activity on private
property held open to the public have recognized such a right." 69 The
court went on to cite examples from California, New Jersey,
Pennsylvania, Washington, and Connecticut that determined that their
citizens had a right to solicit signatures for a petition of the government
in a private mall. 70 The court noted that North Carolina had determined
that it was "not so disposed" 7' to locate such a right in its state
constitution. Nonetheless, the SJC appeared to be influenced by the fact
that the larger majority of states did protect the right to solicit signatures
in a private mall.
In Amendola, the SJC faced a situation where a suspect was charged
with a drug offense but lacked a possessory interest in the paraphernalia
involved, and therefore was denied standing under United States v.
72
Salvucci, to bring a constitutional challenge to the method of collection.
The SJC rejected the Supreme Court's abrogation of the "automatic
standing" rule, noting:
The Commonwealth, in order to prove possession, aims
to show that the defendant was the driver of the Pontiac
and was in possession of the contraband. But in arguing
Commonwealth v. Cao, 644 N.E.2d 1294, 1296-97 (Mass. 1995), cert. denied, 515 U.S.
1146 (1995).
69 Batchelder, 445 N.E.2d at 594.
Id.
70
71 Id. (referencing State v. Felmet, 273 S.E.2d 708 (1981)).
72 448 U.S. 83,90 (1980).
68
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against standing, the Commonwealth claims that the
defendant had no connection with the Pontiac and was
The
not in possession of the contraband.
Commonwealth may not have it both ways. 73
Lacking a textual basis by which to ground a rationale for parting
ways with the Supreme Court, the SJC instead chose to catalogue other
states that had "reject[ed] the Supreme Court's abandonment of the
automatic standing rule." 74
At other times the court has examined the approach of other states as
a way of drawing out the contrast between constitutional texts. In
Commonwealth v. Amirault,75 the court noted that the constitutions of
Virginia, Pennsylvania, Delaware, Maryland, North Carolina, and
Vermont adopted the phrase "[right] to be confronted with" for a
suspect's right to have one's accusers present at trial. 76 In contrast,
Massachusetts chose the phrase "to meet the witnesses against him face
to face," a textual difference that provided a more specific right to
actually see one's accusers at the actual trial. Since the defendant in
Amirault was not able to visibly see his accusers owing to the setup of the
77
room, the court ruled that his Article 12 rights had been violated.
If another jurisdiction reaches a different conclusion from the SJC, it
is not a sign of divisiveness, but a reflection upon a difference in state
histories and constitutions. The fact that the states have distinct
constitutions is no accident; in acknowledging the unique histories of
each state, the first Constitutional Congress "rejected [the idea of
uniform constitutions for the states] in favor of calling upon each state to
write a constitution satisfactory to itself." 78 This individuality may lead
to much diversity of law among the states, but regional difference is a
Amendola, 550 N.E.2d at 125.
Id. at 126. The court listed the following cases to support its rationale: State v. Owen,
453 So. 2d 1202 (La. 1984); People v. Chernowas, 314 N.W.2d 505 (Mich. Ct. App. 1981); State
v. Settle, 447 A.2d 1284 (N.H. 1982); State v. Alston, 440 A.2d 1311 (N.J. 1981); Commonwealth
v. Sell, 470 A.2d 457 (Pa. 1983); State v. Wood, 536 A.2d 902 (Vt. 1987); State v. Simpson, 622
P.2d 1199 (Wash. 1980). Id. The court concluded, "The Supreme Courts of New
have all discarded
and Vermont
Jersey, Pennsylvania,
Hampshire, New
expectation-of-privacy analysis in standing determinations." Id.
75
677 N.E.2d 652 (Mass. 1997).
73
74
76
Id. at 660.
SId.
at 662.
79
Linde, supra note 8, at 381.
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trademark of a federal system such as that of the United States when
79
compared to a national system of government such as England's.
E. Weighing "Contemporary Standardsof Decency"
The loudest dissents have arisen when the SJC has attempted to
determine constitutional "standards of decency" for controversial issues.
It is in these forays that the SJC has had the fewest tools to guide it and
has been described by some as a "superlegislature." Yet the court cannot
necessarily refuse such explorations; the constitution requires the court
to ensure that each individual's sovereign constitutional rights are
protected, even if a decision will go against the weight of public opinion
or will strike down an act of the legislature. However, in order to "assert
the supremacy of judicial construction of [state] constitutions," 80 the SJC
has needed to explain its decisions clearly.
The death penalty has been a primary example of the struggle to
establish standards of decency. In Suffolk County District Attorney v.
Watson,81 for example, the SJC conceded that "'at the time of its adoption,
[Article] 26 was not intended to prohibit capital punishment. Capital
punishment was common both before and after its adoption."' 82 It also
recognized that public opinion was not unanimous by any means on the
issue.83 But it quoted approvingly to Furman v. Georgia for the
proposition that the judicial interpretation of "cruel or unusual" could
not be forced to "[depend] upon virtually unanimous condemnation of
the penalty at issue," 84 and commented that "[Article] 26, like the Eighth
Amendment, 'must draw its meaning from the evolving standards of
decency that mark the progress of a maturing society."' 85 Building on
this premise, the court concluded that the finality of the punishment, the
protection of an individual's "fundamental" right to life, and the
growing awareness of the physical pain involved in administration of
the death penalty all added up to a "cruel" form of punishment.86 Thus,
the SJC fashioned a modern interpretation of "cruel or unusual."
79
80
81
82
See Douglas, supra note 14,at 1146.
Landau, supra note 24, at 890-91.
411 N.E.2d 1274 (Mass. 1980).
Id. at 1281 (citing other cases).
83
Id. at 1282.
84
85
86
Id. (quoting Furman v. Georgia, 408 U.S. 238, 268 (1972) (Brennan, J., concurring)).
Id. at 1281 (citing other cases).
Id. at 1282-83.
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The concern over this decision and its lack of historical or textual
grounding was evident even within the Watson opinion. In his dissent,
Justice Braucher commented, "Icannot rid myself of doubt whether, if I
relied solely on 'contemporary standards of decency,' 'I would be
enforcing my private view rather than that consensus of society's
87
opinion which ...is the standard enjoined by the Constitution."'
Justice Quirico went a step further, arguing in his dissent:
[T]he total absence of any sound reason for the
difference in interpretation gives cause to question the
decision in this case. There is no historical reason to
suppose that these words, first adopted as a part of the
Massachusetts Constitution in 1780 and then adopted as
part of the First through Tenth Amendments to the
United States Constitution in 1790, were intended to
have different meanings in substantially similar societal
settings, both of which clearly recognized and
sanctioned capital punishment for certain crimes.8
In response to rulings such as Watson, Article 26 of the
Massachusetts Constitution was amended in 1982 with the following
addition: "No provision of the Constitution, however, shall be construed
as prohibiting the imposition of the punishment of death." This clause
prevented the SJC from using Article 26 to strike down a subsequent
death penalty law, but it also demonstrated the checks-and-balances
between the courts and other branches of government that necessarily
and properly occur when the court broaches sensitive constitutional
questions. However, in a later case,8 9 the court concluded that a new
death penalty statute violated Article 12's self-incrimination clause
because "it provided that only those defendants who pleaded not guilty
and demanded a jury trial were at risk of being put to death. Those who
pleaded guilty could avoid the death penalty." 9°
Id. at 1287 (Braucher, J., dissenting) (citing Louisiana ex rel. Francis v. Resweber, 329
U.S. 459, 471 (1947) (Frankfurter, J., concurring)).
8
Watson, 441 N.E.2d at 1300.
89
Commonwealth v. Colon-Cruz, 470 N.E.2d 116 (Mass. 1984).
Alan Rogers, "Success-at Long Last": The Abolition of the Death Penalty in
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Massachusetts, 1928-1984, 22 B.C. THIRD WORLD L.J. 281, 352 (2002).
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IV. CONCLUSION
Although the SJC often interprets the Massachusetts State
Constitution consistently with the United States Supreme Court's
interpretation of the Federal Constitution, it does not always do so. In
those cases where the SJC does depart, it uses a variety of analytical
methods to support its conclusion. In the words of a former Chief Justice
of the SJC, "We often agree with [the Supreme Court]. We are not trying
to be contrary. We are, however, entitled to our own views, indeed
constitutionally required to have them." 91
Herbert Wilkins, Remarks of Chief Justice Herbert P. Wilkins to Students at New England
School of Law on March 27, 1997, 31 NEw ENG. L. REV. 1205, 1213 (1997) (cited approvingly in
Gonsalves, 711 N.E.2d at 115).
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